Citation Nr: 0701636
Decision Date: 01/19/07 Archive Date: 01/25/07
DOCKET NO. 03-28 248 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to an initial evaluation in excess of 10 percent
for residuals of a stroke.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
J. Andrew Ahlberg, Counsel
INTRODUCTION
The veteran served on active duty from March 1962 to
September 1964.
This case was originally before the Board of Veterans'
Appeals (hereinafter Board) on appeal from the initial rating
assigned for service connected residuals of a stroke by a May
2003 rating decision by the Department of Veterans Affairs
(hereinafter VA) Regional Office in St. Louis, Missouri,
(hereinafter RO). The case was remanded for additional
development in June 2004 and July 2005 and is now ready for
appellate review.
FINDING OF FACT
Service connected residuals of a stroke are not shown to
result in moderate incomplete paralysis of the external
popliteal nerve.
CONCLUSION OF LAW
The criteria for a rating in excess of 10 percent for
residuals of a stroke are not met. 38 U.S.C.A. §§ 1155,
5100-5013A, 5106, 5107 (West 2002 & Supp. 2005);
38 C.F.R. §§ 3.102, Diagnostic Codes (DCs) 8008-8521 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to notify and assist
With respect to the veterans claim on appeal, VA has met the
notice and duty to assist under applicable statute and
regulations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326 (2006). With regard to the
duty to notify, the veteran was provided with notice in a
March 2002 letter of what type of information and evidence
was needed to substantiate his claim for service connection
for residuals of a stroke, but he was not provided with
notice of the type of evidence necessary to establish a
disability rating or effective date for such disability.
Although notice was not provided to the veteran prior to the
initial adjudication of the claim for service connection for
residuals of a stroke informing him that a disability rating
and an effective date would be assigned should the claim of
service connection be granted, the Board finds that the
veteran has not been prejudiced. "In cases where service
connection has been granted and an initial disability rating
and effective date have been assigned, the typical service-
connection claim has been more than substantiated-it has
been proven, thereby rendering section 5103(a) notice no
longer required because the purpose that the notice is
intended to serve has been fulfilled." Dingess/Hartman v.
Nicholson, 19 Vet. App. 473, 491 (2006).
As for the duty to assist, the veteran's service medical
records have been obtained, along with VA medical records.
The veteran has been afforded VA Compensation and Pension
examinations and the record contains the medical opinion
requested by the Board in its July 2005 remand to clarify the
severity of the residuals specifically attributable to the
service-connected stroke. There is no indication in the
record that additional evidence relevant to the issue decided
herein is available and not part of the claims file. As
there is no indication that any failure on the part of VA to
provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, No. 02-1077
(U.S. Vet. App. Dec. 21, 2006); see also Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006).
II. Legal Criteria/Analysis
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
Separate diagnostic codes identify the various disabilities.
Where there is a reasonable doubt as to the degree of
disability, such doubt shall be resolved in favor of the
claimant, and where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. 38 C.F.R. §§ 3.102,
4.3, 4.7. In addition, the Board will consider the potential
application of the various other provisions of 38 C.F.R.,
Parts 3 and 4, whether or not they were raised by the veteran,
as well as the entire history of the veteran's disorder in
reaching its decision, as required by Schafrath v. Derwinski,
1 Vet. App. 589 (1991).
Because the veteran has disagreed with the initial rating
assigned for his service-connected stroke residuals, the
question for consideration is the propriety of the initial
evaluation assigned, and consideration of the appropriateness
of "staged rating" is required. See Fenderson v. West, 12
Vet. App. 119, 126 (1999).
The service medical records reflect hospitalization for
subarachnoid hemorrhaging from April to May 1964. The
veteran entered the hospital with complaints of lethargy and
headaches. Procedures accomplished during the
hospitalization included a lumbar puncture and bilateral
carotid ateriograms. Reports from follow up treatment in
June 1964 indicated that the symptoms prior to the April 1964
hospitalization also included mental confusion. Following
the hospitalization in April 1964, the symptoms according to
the June 1964 report were limited to amnesia of the events
that led to the hospitalization and daily occipital and
bitemporal headaches which were promptly relieved by
salicylates. No motor or sensory losses were reported at
that time, and the veteran felt that his intellect remained
normal.
Upon examination in June 1964, there was decreased rapid
alternating motion of the left arm and a suggestion of
exophoria in the left eye. Otherwise, there were no
objective neurological or physical findings. A Physical
Evaluation Board determination of August 1964 found the
veteran to be unfit for further service with a diagnosis of
"Post subarachnoid hemorrhage (idiopathic), etiology
unknown, with minimal residuals.
Following separation from service, the veteran was afforded a
VA examination in March 1965 which demonstrated no
neurological findings and no evidence of a psychiatric
disorder. The veteran did complain of headaches, and the
diagnosis was "[r]esidual of subarachnoid hemorrhage,
manifested by recurrent headache, chronic, mild."
Thereafter, service connection was granted for residuals of a
subarachnoid hemorrhage, rated as 100 percent under DC 8009
effective from September 5, 1964, and 10 percent from October
1, 1964. The 10 percent rating under DC 8009 has been
confirmed and continued until the present time by multiple
rating decisions and a September 2000 Board decision.
The aforementioned May 2003 rating decision granted service
connection for headaches and residuals of a stroke as
secondary to the subarachnoid hemorrhage. A 30 percent
rating was assigned for headaches under DC 8100 and a 10
percent rating was assigned for stroke residuals under DCs
8008-8521. This decision followed an April 2003 VA
examination that referenced MRI findings demonstrating a
lesion in the brain consistent with a stroke and examination
reports reflecting mild right sided weakness in the lower
extremities. The impression was that it was as likely as not
that the abnormality noted by MRI was related to the
subarachnoid hemorrhage. A subsequent rating decision dated
in September 2003 listed the disability rated under DCs 8008-
8521 as "Stroke with resultant right-sided weakness,
listlessness and memory loss associated with residuals of
subarachnoid hemorrhage."
A VA physician reached the following diagnosis after a March
2005 examination: "Subarachnoid hemorrhage, April 1964
with residuals of recurrent parietal headaches which are not
debilitating." No neuralgic deficits were noted upon
examination, and after summarizing the clinical history, the
examiner noted that "[t]o date, the patient continues to
have normal neurologic exam [sic]." Emphasis added. She
stated that there was no evidence that the original injury
diagnosed as a subarachnoid hemorrhage had worsened or
resulted in secondary conditions aside from complaints of
chronic headache.
In order to clarify the severity of the disability solely
attributable to stroke residuals rated under DCs 8008-8521,
the same VA physician who conducted the March 2005 VA
examination prepared an opinion in February 2006. This
physician indicated that she had reviewed the veteran's
clinical history, to include an April 1998 CAT scan and
January 2005 MRI that demonstrated "solitary non-specific
old cystic changes in the white matter." She found this
finding to be "more likely than not secondary to [the
veteran's] original injury in 1964." She indicated that due
to "technologic advances over the years, more specific
findings have become evident." She also indicated that the
only residuals were headaches, and that the veteran had no
weakness or inability to perform the activities of daily
living. The physician also noted that it could not be
determined if there was any memory loss related to the above
findings, and noted specifically with respect to the current
stroke residuals as follows:
In regards to [the veteran's] stroke,
there would be no residuals aside from
the headache. The stroke was the result
of the subarachnoid hemorrhage, which
resolved. Again, there is no evidence
presented to suggest that [the veteran's]
original injury diagnosis of subarachnoid
hemorrhage has worsened or resulted in
secondary changes aside from his
complaints of chronic headaches.
Analyzing the veteran's claim with the above findings in
mind, the Board emphasizes that the matter before the Board
is limited to the propriety of the rating assigned for
residuals of a stroke under DCs 8008-8521. The propriety of
the rating for headaches under DC 8100 is not before the
Board and the propriety of the original 10 percent rating
assigned under DC 8009 for residuals of a subarachnoid
hemorrhage is not at issue, as the case has been specifically
developed to determine the severity of the disability solely
attributable to stroke residuals rated under DCs 8008-8521.
The notes following 38 C.F.R. § 4.124a, DCs 8807, 8008, and
8009 for embolism, thrombosis, and hemorrhage, respectively,
of brain vessels provide that following an initial rating of
100 percent for six months, the disability shall be rated
thereafter based on residuals, at a minimum rating of 10
percent. Under DC 8521, a rating in excess of 10 percent
requires moderate disability due to incomplete paralysis of
the external popliteal nerve. The VA physician who conducted
the March 2005 examination noted that there were no
neurologic deficits present, and she concluded in her
February 2006 opinion that the stroke residuals were limited
to headaches. As such, a rating in excess of 10 percent
under DC 8521 clearly cannot be assigned, nor can a rating in
excess of 10 percent be granted under any other potentially
applicable code for any additional symptomatology, other than
that resulting from headaches. Again, the propriety of the
rating assigned for headaches is not before the Board at this
time. Accordingly, an evaluation in excess of 10 percent
disabling for residuals of a stroke rated under DCs 8008-8521
is not warranted at any time subsequent to the effective date
of the initial rating, October 11, 2001. See Fenderson v.
West, 12 Vet. App. 119 (1999) (to the extent that a staged
rating is warranted, see above); 38 C.F.R. § 3.400 (2006).
In reaching the above conclusion, the Board has considered
the doctrine of reasonable doubt. However, as the
preponderance of the evidence is against the veteran's claim
for an increased rating for residuals of a stroke, the
doctrine is not for application. Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
Entitlement to an initial evaluation in excess of 10 percent
for residuals of a stroke is denied.
____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs